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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
(Senate-Thursday, 16 April 2009)
NEATE, Mr Graeme John
McAVOY, Mr Tony
MURPHY, Mr Jeffrey Mark William
KARLSSON, Ms Tiffany Louise
ROCHE, Mr Greg
ANDERSON, Ms Louise
SODEN, Mr Warwick
- Senator TROOD
Content WindowSTANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Native Title Amendment Bill 2009
CHAIR —I now welcome representatives from the Federal Court of Australia. Thank you for appearing before us. Do you have any comments to make about the capacity in which you appear?
Mr Soden —Madam Chair, I would like to thank you for adjusting the program to ensure that I was here. May I place on the record that I got here on time, notwithstanding my earlier concerns about a delayed flight. Thank you for making that adjustment.
Ms Anderson —I am appointed as a deputy registrar of the court, but my responsibilities are native title and technology, which is an interesting mix.
CHAIR —We have your submission. Before I ask you to make an opening statement, do you want to make any changes or amendments to that submission?
Ms Anderson —Thank you. We refer to an annexure, the court’s submission to the Attorney-General’s discussion paper, which was released in December last year. I apologise for the oversight but I am not sure whether the committee received that annexure. If it did not I will forward it.
CHAIR —Are you talking about the discussion paper itself?
Ms Anderson —The court’s submission to the discussion paper.
CHAIR —No, we didn’t. We have the discussion paper but we do not have your submission to that. However, we have just been told that they are all up on the website so we can probably get access to it.
Ms Anderson —My apologies that it was not attached to the submission.
CHAIR —That is fine. Do you want to make an opening statement?
Mr Soden —Yes, thank you. I should commence this opening statement by saying it is quite unusual for the court to make an opening statement to a committee of this kind. It is usually the case that we are here and happy to answer any questions, but I think the fact that we are prepared to give an opening statement is an indication of the strength of the view within the court about our support for these proposed amendments. That leads me to what is a short opening statement.
We welcome the amendments. We welcome the responsibility and accountability that goes with them. We will manage the jurisdiction in a national and a coordinated way. These are complex cases. They are not the same. Just because they are called native title cases does not mean there should be any assumption of the way in which they ought to be treated. There is a plethora of issues of different kinds in many of them and there are different people in them. Whilst they might have some common denominators, it is often the case that although the issues might look similar they can be essentially very different. We believe there is an assumption that they ought to be treated inconsistently but in a consistent way and in a coordinated way.
The court, we believe, is in the best position to work out what mechanism would be in the best interests of these cases. It may be that a special referral to a case management conference under the direction of a judge might be most appropriate. It might be that a special hearing on a specific issue that needs to resolved before any mediation could take place would be the most beneficial thing to be done in a particular case. It might be that the court thinks the best thing to do is refer the matter to one of the court’s staff or another particular person who was not a member of the tribunal to exercise the mediation powers of the court by referral. It might even be a referral to the tribunal in the ordinary course.
The court has a wealth of experience in managing a whole lot of different cases, including native title cases. It applies the principles of active case management. It has an international reputation for the way in which it is innovative and brings to bear the best approach to the issues that need to be resolved in different cases. In terms of coordination across the country, the court has specialist lawyers in each of the states and territories or former territories across Australia. They are experts in native title. They work closely with the judges in each of those states, particularly the native title judges who have responsibility for coordination in each state. They are in a very good position to give advice and assistance to the judges about what needs to be done in a particular matter to ensure coordination and this constant discussion between the judges across the states about coordinating issues, including priorities and the like.
I could go on and answer many of the questions that I had the benefit of hearing whilst I was in the back of the room, but it is probably not appropriate that I do so at this point. I just wanted to reiterate the court’s view that we take this proposed responsibility very seriously. We know it will come with a degree of accountability. We know there are a lot of expectations to be placed upon us as a result of the extra responsibility and accountability, but we embrace that. These cases are crying out for a new and innovative approach to be taken. We believe, with the broad experience we have not only in this jurisdiction but in the way in which cases can be looked at and treated differently, we will bring those changes which will speed up the whole process and produce outcomes.
One important point is that it would be wrong to assume that the court focuses on litigation first. We do not. Our focus on all the case management approaches is the best way to resolve the dispute. Some cases require litigation, but it is certainly not the case that we focus on litigation as the primary way in which to resolve a matter. The evidence of that is that most of the cases in our court do not result in litigation. Most are resolved by agreement between the parties and, in many of our cases, as a result of mediation by staff of the court.
CHAIR —Thanks. I will start the questions. In your submission to us you say that the court is currently reviewing its approach to the management and improvements of this bill. Can you just give us an update of where that review is at and what you are hoping it might achieve.
Mr Soden —Ms Anderson might fill in any of the gaps that I leave. It is not a formal review of the kind you might be thinking of. We have increased the activity of the coordinating judges in terms of meetings and discussions and the like to look at how we will take on this responsibility and accountability, what arises from it and how we will ensure that coordination takes place. There have been a number of meetings and discussions. As recently as two weeks ago, we had all of the judges involved in native title cases—not only the coordinating judges—in a meeting in Adelaide to discuss how we will manage the coordination of these cases.
CHAIR —You say in your submission that if the bill is passed in its current form, then you proposed that the judges review each state and territory case load. Has that started to happen?
Mr Soden —No, it has not. But on the assumption that there would be broad support for these proposals, we have started to do some work in preparing information on the assumption that the judges will undertake reviews of every pending case across the country.
Senator SIEWERT —Of every case?
Mr Soden —Every case.
Senator SIEWERT —So the 472, which I think are now on the books?
Mr Soden —Yes, that is the plan. We propose to have a fresh look again at every case across the country.
Senator SIEWERT —Do you have a time frame for that?
Mr Soden —No, we have not, but the expectation of many of us is that it would be within a few months.
Senator SIEWERT —Once the bill is passed.
Mr Soden —Yes, in a few months, after the bill has passed.
CHAIR —Finally, on the first page of your submission, you say that you have already had proposed meetings between the officers of the A-G’s Department and the Native Title Tribunal and the likely impact on the work of the court. Can you outline for us not only the impact, but also the cost, and whether that will be assumed within your existing cost structure or whether there will be further resources needed?
Mr Soden —Our present plan is to undertake everything I have mentioned within our existing budget. There might be a shift of timing in respect of some of the things we would otherwise do that will enable us to undertake the initiatives I have mentioned, but at this stage we do not envisage any immediate need to seek any additional resources to take over this responsibility.
Senator SIEWERT —I will continue on from there, but I also have some questions about the review and the management of the 472 cases. In terms of resources, Senator Trood was asking the department earlier about this, the engagement of outside mediators, for example, will be a cost that the court will have to bear. Do you still think that will be—
Mr Soden —Within our resources? Yes. The assumption that we will engage outside mediators is right, but it would be wrong to assume that it will be a massive change from inside to outside. We have a lot of very good and experienced internal registrars of the court who have had experience in mediating native title cases with extraordinary success. But, if we decide that in a particular matter it cries out for someone kind of special—other than someone in the tribunal, or the tribunal per se, and other than one of our staff—and if the parties are very keen to engage a person who they think might be able to be a game breaker, for want of a better term in respect of the key issues involved, we have the resources to employ that person.
Senator SIEWERT —I am glad that you do. I would have thought that, even internally, your current registrars are not sitting around twiddling their thumbs; I would anticipate they have significant workloads already. It still seems to me there would be a resource issue in terms of the extra workload that you are about to take on.
Mr Soden —It will be a matter of priorities. It is always a matter of priorities. And it is our view that some priority must be given to moving these cases along a little bit faster than has previously been the case. And if that is going to be done by some of our staff doing more work in relation to mediating native title cases or working on native title cases to the detriment of some other cases, that does not mean the other cases will suffer. Something else might be able to be done to them by direction of the judge and without the benefit of one of our staff mediating those cases. In other words: instead of the focus being on mediation of other non-native title cases, we might have to shift some of the resources to native title cases to put the priority where, at the moment, it needs to be.
Senator SIEWERT —I think we determined that it was 472 cases that the tribunal said are currently on the books. As I understood your previous comment, you intend to review all those cases within the next couple of months. I appreciate that you have also said that you have already had meetings with the tribunal. Say you have a conflict with the tribunal; it has been handling a particular case in a certain way. How are you going to deal with the conflict that you may have with the tribunal if members of the court think that the case should be handled differently and there is a fundamental disagreement on how those cases should be handled?
Mr Soden —In our meetings with the tribunal, we have indicated that we intend to go through this process of looking at all of the cases. The tribunal will have the opportunity. We would expect their assistance in relation to information to the court about what might be the best thing for that case. It is clear that many of these cases will remain with the tribunal for their purposes. If there is a difference between the tribunal and the parties, the court will have to make a decision and give the reasons as to why the court makes any decision that a matter pending in the tribunal will be moved from the tribunal and that some other process will be undertaken. But the court is not going to do that without giving the parties and the tribunal an opportunity to give information to the court about what is the best thing, from their perspective, to do on the matter.
Senator SIEWERT —I would hope that this would not be the case, but if a disagreement eventuates then the tribunal has a lot of access to resources; it has its internal resources—geospatial resources—and various other levels of expertise. If there is a disagreement with the tribunal about a case and the court takes a different approach, you are then perhaps going to need to also engage other expertise to deal with the issues that the tribunal would normally deal with.
Mr Soden —Not necessarily.
Senator SIEWERT —How would you handle it?
Mr Soden —It all depends on what is going to happen to the case. Let us assume that there is a difference between the parties and the tribunal about whether the matter ought to stay in the tribunal for mediation and that the parties say to the court, ‘We would like the matter to be taken back into the court for the purpose of having something else done to it.’ There are a range of things that could be done. There might be a requirement for some early evidence to be taken on a particular issue. There might be a request to the court that it take control and give directions in relation to an issue that needs to be heard and determined by the court. To be frank, there may be a request from the parties for the matter to go back to the court so that the court can refer it to mediation by one of the court staff on a particular issue that the parties think the court staff might be very good at resolving—some particular conflict involving overlap or whatever. So it does not follow that there would be the impact that you mentioned.
Senator SIEWERT —When you are reviewing the cases, I presume that you are not going to be taking over more intensive management of cases just where the parties request that; I presume you will look at it and, if there has been no progress, you may potentially have a more active involvement in that particular case despite the parties not requesting that you do so. Is that right?
Mr Soden —I think that is a very fair assumption. The one thing that must be remembered is that these are all proceedings in court. They are all pending proceedings in the court. We are concerned, as many other people are, about how old they are and how long they are taking. We think it is certainly very appropriate to review these cases, particularly where the parties might ask us not to do anything, as to what the reason is. What is behind them?
Senator SIEWERT —I will ask you a question that was raised by the National Native Title Council this morning. Ms Anderson was here when the issue was raised. The issue is changing the presumption of connectiveness and changing the legislation. They are proposing that an amendment be introduced that changes the presumption of connectiveness along the lines that Justice French articulated in his recent article.
Mr Soden —Which, as I must place on the record, was written when he was a judge of our court.
Senator SIEWERT —Yes.
Mr Soden —It would be wrong to suggest that it is an article of Justice French as the Chief Justice.
Senator SIEWERT —Yes, I appreciate that. The chair may tell me that I am not allowed to ask for an opinion, but I will ask, and then the chair can tell me no! Do you have an opinion on whether that would be a constructive amendment? It does not have to be whether it is to this bill or later on; the council was obviously suggesting that it be an amendment to this bill, but whether it is or not—
CHAIR —That is not a matter that we are inquiring into, so—
Senator SIEWERT —I am interested in your opinion as to whether you think that would help.
Mr Soden —It is probably not appropriate, Madam Chair, that I give an opinion.
CHAIR —That might be the subject of a letter you write, perhaps, rather than a question you ask.
Mr Soden —It is probably not appropriate that I give an opinion, and it is not a matter that I have given some careful thought to. I suppose it is fair to say that I am not in a position to give opinions.
Senator SIEWERT —Okay, let me change the direction of the question. It was put by the tribunal this morning that the issues around connectedness are—and I hope I am not misquoting them—largely the cause of delay in the bulk of cases. How would you intend dealing with that issue? My understanding of part of their contention was that these changes to the way that we are addressing mediation will not address the bulk of the delays because that is about connectedness and the lack of documentation, and therefore in the longer term that needs to be addressed—sorry, no, they did not say that. My comment then is: how are we going to address those issues? In other words, are the changes that this bill proposes to make going to deal with the bulk of the delays that it seems to me everybody really wants to deal with?
Mr Soden —I do not think there is an easy answer to that question, and I will—
Senator SIEWERT —If there was we would not—
Mr Soden —give you my personal view. I would be surprised if it were not shared by many of the judges of the court. Connection and the attitude taken by respondents to connection are a problem. I believe, however, that the court being seen and being given the responsibility and accountability for managing all of these cases will put an emphasis on the judges to find ways to resolve some of the bottlenecks caused by the attitudes being taken into connection material. The big, fundamental difference between us and the tribunal in relation to that issue is what the judges can do by way of orders of the court, from the powers that they have, which may put some real pressure on the respondents to change their attitude in relation to their approaches to requirements for connection material. That is my view. I know it is shared by many of our judges. I would hope that this new responsibility would refocus our attention on the issue of how to solve the problem of connection.
Senator SIEWERT —Thank you.
Senator TROOD —So what are the particular provisions in this bill that are giving the court the capacity to take a more central role in managing these cases?
Mr Soden —I cannot tell you the number in the amended bill, but in essence it is the provision that takes away the mandatory referral to the tribunal—or, in a policy sense, the provisions of the bill that shift the responsibility from the tribunal to the court by the removal of the mandatory requirement for the court to refer the matter to the tribunal for mediation.
Senator TROOD —So it is this particular provision on which you hang your argument about the capacity of the Federal Court to take a more proactive role in managing these issues and the assumption upon which you have built your activity with regard to coordination and taking a more proactive role, reviewing all the cases and things of that kind. Is that right?
Mr Soden —In some senses it has refocused our role to what it was prior to the 1 July amendments where that mandatory referral to the tribunal came into existence. Prior to that we had that role, though we did not exercise it probably as powerfully as it might arise as a result of these amendments where the court is given clear responsibility and authority. But since 1 July 2007, as a result of those amendments and the expectation that everything be referred to the tribunal and the court not mediate, we have not. This reverses that, and we are proposing to take that responsibility, take it seriously and accept the accountability. We have heard the comments about coordination across the country; we take that seriously. And we agree with the concerns that have been expressed broadly that things have taken too long and there needs to be changes.
Senator TROOD —I think we all agree on that point, that these claims take far too long to resolve, but there are obviously matters of evidence and a great deal of complexity involved with them. Your submission lists on page 3 a range of options which are available and which I assume you are now saying to us you intend to exercise. But these options are already available for the court, aren’t they?
Mr Soden —In essence, yes; but, as I explained, we have not focused on those kinds of options since 1 July 2007 where the main responsibility has been with the tribunal.
Senator TROOD —Why not? The court has had the entitlement, the right, the jurisdiction and the power to exercise these options if it chooses to do so. What are you saying—that it has abrogated its responsibility and basically said, ‘We’re not proposing to exercise these options, we’re going to give it to the tribunal to sort out’?
Mr Soden —No, certainly not. I think it is fair to say the judges have been conscious of the expectation in that legislation that matters ought to remain in the tribunal until the possibility of a mediation is exhausted.
Senator TROOD —So the powers have been there but the court has been reluctant to exercise them for fear that it will tread on the responsibilities of the tribunal?
Mr Soden —No, I do not think we would have any fears about treading on the responsibilities of the tribunal if that was the right thing to do in certain cases. I think the court in respect of any matter before it at any time has been conscious of a number of issues: the wishes of the parties, the applications of the parties, the views of the parties, the fact that the matter is in the tribunal, the status of the matter in the tribunal and, as well, the fact that those amendments that I mentioned—the 1 July 2007 effective amendments—were clear in their message that the matter should remain in the tribunal unless for some special reason the court pulled it out of the tribunal—but that has been the exception rather than the rule.
Senator TROOD —Correct me if I am wrong but the amendments were also clear in their message that the powers that the court already had to manage these cases were not being removed from it; that if a judge of the court chose to exercise these powers in relation to any one of the large list that you have put in your submission—management of claims on a grouped or regional basis, early neutral evaluation etc—then that judge could use any of those powers at the time if he or she chose to do so.
Mr Soden —And has, for good reason.
Senator TROOD —I am just struggling to come to an understanding as to why things had changed. It seems to me there are two matters that are substantive here. One is that the court will now have the capacity to be able to appoint mediators and the second is that it does not necessarily have to send things on a mandatory basis off to the tribunal. Beyond that, the court’s powers in some cases are reinforced and clarified but they are essentially the same powers as the court has had for a long period of time.
Mr Soden —The court has always had the power to appoint mediators. Prior to the 1 July 2007 amendments it made orders appointing some of its staff as mediators in native title jurisdiction.
Senator TROOD —When you say ‘its staff’, do you mean your registrars?
Mr Soden —Yes, and there were some other non-Federal Court employees engaged in mediations under the existing provisions of the Federal Court of Australia Act and the rules, but, as I said, since 1 July 2007 the clear policy was that matters should go to the tribunal first and they should stay there until the possibility of a mediated result was exhausted.
Senator TROOD —Are you saying the court took that policy from what it understood to be the thrust of the amendments that came into force on 1 July 2007?
Mr Soden —I think that was the thrust of the amendments, yes.
Senator TROOD —How many of the justices of the court actually deal with native title issues?
Ms Anderson —There are 11 judges of the court who have native title list judge responsibilities, which means they coordinate and look at the overall list in a regional or a state context but do not necessarily actively manage a case one on one. Overall we have 18 judges managing or having some involvement in native title cases. For example, Justice Finn is hearing the Torres Strait sea claim, which has now had judgment reserved. There are a number of judges who have matters like that and there are 11 who have an active coordinating role in the list.
Mr Soden —I was going to say 20—I was close!
Senator TROOD —You were not far off—no, that is good. In light of this additional responsibility as you see it that the court is assuming, do you anticipate that more judges are going to be brought into dealing with native title matters or are you comfortable that the number you have assigned to that area is good enough?
Mr Soden —No. There will be more judges involved in native title cases. There is a clear view amongst the judges that there is a keenness or willingness for more judges to be involved in native title cases, and that will occur.
Senator TROOD —Perhaps you cannot answer this question at this stage, but are you thinking that there will be a substantial expansion of the number of judges or are we talking about adding two or three that will take on lists?
Mr Soden —No, not take on lists. I think the number of judges managing the lists will remain fairly constant—the 11 that Ms Anderson mentioned. As a result of that increased management activity of those judges there is probably going to be a need for more judges to be involved in the issues or the work arising from that increased activity, but that does not mean there will be trials. There might be something that needs to be done by a judge short of a trial, and there will be more judges willing and available to do that work.
Senator TROOD —What are the individual judges doing about gaining some kind of background in native title law and resolution?
Mr Soden —Some of them already have experience in native title, but they just have not been a judge involved in a native title matter. Those judges and other judges who are interested in getting that experience were actually at that meeting I mentioned earlier, held two weeks ago, involving the judges to be involved in managing and coordinating native title.
Senator TROOD —Did that meeting two weeks ago include the existing judges involved in native title or the existing judges and those who are likely to be drawn in to practise in this area?
Mr Soden —Not everyone who wanted to be there was able to go from amongst those judges who have existing responsibilities for list management or have existing experience. Other judges who have not yet had an allocation of a native title trial were at the meeting, but I do not think that that group is the total number of judges that is likely to ultimately be involved in native title matters.
Senator TROOD —Your submission refers to the matter of coordination and consistency as being a desirable objective in this area of public policy, but we have this difficulty, have we not, of justices being rather reluctant to follow particular injunctions as to how they should act in their own courts in this area. This has been a consistent problem, hasn’t it, between different judges of the court in Queensland and Victoria, for example, and across states. They have had quite different approaches to questions of native title. How are you going to solve that problem?
Mr Soden —You mean questions of the management of native title, not questions of native title?
Senator TROOD —Yes.
Mr Soden —There are different views, as a matter of law, in relation to what—
Senator TROOD —No, I am not suggesting that justices are doing different things, but the process, and how it is managed, is a critical part of the problem. There seem to be profoundly different approaches among the different judges on the actual management of cases. That affects their own sense of their independence, and their constitutional independence of course, and it is not clear to me that the court, or indeed the Chief Justice, has the capacity to rein in that sense of constitutional propriety that they have.
Mr Soden —There have been some issues arising in the past as a result of the different approaches taken by the different judges. That is not to say that the different approaches were necessarily wrong in the places they were exercised.
Senator TROOD —No, I am not making that point.
Mr Soden —So it does not follow that there needs to be a consistency of approach by judges in one state as compared to another state. That needs to be clear, from our perspective. You may, however, have a judge in one state—whether it be Queensland, Victoria or Western Australia—taking a different approach in relation to different cases. That is not a matter of judicial independence; it might be simply a matter of different cases needing different attention. It should not be assumed that cases which, on the face of it, appear similar ought to receive the same attention. That is the essence of the judicial process. Often it is up to the judge who can see what might be the best thing for a particular matter. That inconsistency is something that we believe can be very beneficial. Consistency might have the effect of dumbing down an approach rather than taking advantage of the innovation that might be available.
Senator TROOD —I do not disagree with that. Clearly these claims are all different and they may well demand different kinds of approaches to their resolution. That means, at different stages in the process, one might give directions which would take a case on a different course from another one that the same judge is handling. I do not have any difficulty with that, but I do think some general consistency in the way they are dealt with, and the speed they are dealt with et cetera, is a desirable objective.
Mr Soden —We certainly accept that the institutions involved in the native title will benefit from a better understanding of what is likely to happen as a result of a matter before the court. There was a mention in one of the questions earlier on about whether the court is going to give some guidance or a practice note. The answer is yes we will. It will be very comprehensive, it will give an explanation of what is expected and it will list a whole lot of options that the court will focus upon. The consequence of that will be that some of the institutions that have been involved will need to think about how they might do things differently—faster or in a different way. That, we believe, is not necessarily a bad thing arising from a refocused attention on these matters, a look again at everything that is pending, and some things are going to change. Where do you think this leaves the tribunal in this process?
Mr Soden —Involved.
Senator TROOD —Involved?
Mr Soden —Yes. We have had meetings with the tribunal. We have told them the kinds of things that I am expressing here. We can understand the tribunal’s concern about being clear about what we are going to do. We are being is clear as we can, at this stage, about what we are likely to do, but things will change, things will be different. At the end of the day, there are going to be many matters that are likely to remain in the tribunal for mediation in the ordinary way. On the other hand, there is going to be a new look at some of these matters, and some might be referred to another person for another process.
Senator TROOD —But you still see the tribunal as having a critical and important role in the whole process of resolution. After all, there is a very considerable resource there. There is an already established institution with a great deal of expertise in mediation. I am sure the government has told you there are no more resources available for exercising this responsibility. You cannot expect any more resources so you are going to have to manage the additional powers that you are undertaking within your existing resources. Perhaps that means that the tribunal will end up with more work than it previously had.
Mr Soden —We expect the tribunal to continue to perform a very important role in mediating native title matters and in providing the other facilities that it undertakes. But to be frank it would be wrong to assume that every matter that is presently before the tribunal will remain with the tribunal. The process that I mentioned, of the court looking at every case that is pending, will result in some things changing.
Senator TROOD —So you are foreshadowing the possibility that some issues currently before the tribunal might be removed from the tribunal?
Mr Soden —Yes. I could not exclude that possibility.
Senator TROOD —Conversely, does it follow that the tribunal might become more fully seized of responsibility for some issues which are not before the tribunal.
Mr Soden —That possibility is true; yes.
Senator TROOD —Just on this matter that I have explored, of appointing a mediator—I think it is section 86—is it your understanding that the legislation, when it appoints a mediator, is not envisaging that it would reach into the tribunal to appoint a particular member of the tribunal as a mediator?
Mr Soden —No, we have never done that. A matter is referred to the tribunal for mediation. There is no proposal that I am aware of—and I would be aware of it—for the court to appoint a member of the tribunal to do a mediation. There is no suggestion of that at all. I do not know where that has come from.
Senator TROOD —You had said that some things are going to change.
Mr Soden —That will not change. But let me make it clear that if the court decides that another person—not a tribunal member—is to receive a mediation, it will make an order for a person to be a mediator. I heard a question, earlier on, about whether we are going to refer a matter to another institution for mediation. I cannot imagine what institution that might be, and that is not on the radar so far as I am concerned at this stage. We would be very, very concerned about who is going to mediate a native title matter. That is why we have no difficulty with referring the matter to the tribunal and leaving it to the president to work out who receives it. That is quite acceptable. We have no problem with that at all but when it comes to someone else we will be very concerned about who that person is. We are very likely to get the views of the parties to the proceedings about the particular person who might mediate a matter or undertake some other ADR function but I do not envisage at this stage any reference to any other institution for mediation, other than the tribunal.
Senator TROOD —I see. Do you have a list of people with expertise in the area of native title?
Mr Soden —No; we do not have a list but we know of people. It may be that we do generate a list but not a list that would be exclusive in the sense that we would only use those people. That would take away the opportunity of using someone where the parties have said: ‘We’ve got this issue. We think this person is the ideal person to resolve it. If that issue is resolved we will be able to settle this matter.’ That would be an attractive option.
Senator TROOD —I can see that. I am not suggesting you should not go beyond that. I am interested to know whether there is a body of people here who have expertise that could be called upon—
Mr Soden —Within the court—
Senator TROOD —to participate in the process. You have mentioned the registrars. You do not have in mind anybody else in the court, do you?
Mr Soden —No.
Senator TROOD —So we are talking about other mediators—mediators outside the court. I do not have any difficulty in identifying them. What I am interested to know is whether that they have the skills, the expertise and the qualifications that are necessary—and indeed that they are avoiding any possibility of conflicts of interest in resolving the matter.
Mr Soden —All of those things would be automatically considered before we would make any referral to another person for mediation. One issue that I should mention, just so that you know the extent of the options that we are thinking about is, is that we might decide that if we referred a matter to one of our registrars for mediation that it might be beneficial for a co-mediator to be involved. That person might be an Indigenous person who is a person that the applicants are happy to have involved and who might be able to bring some special benefit to the process in being a co-mediator in the process. They are the kinds of things that we are thinking of as ways in which these very old and languishing cases can be accelerated.
Senator TROOD —Can you have a co-mediator who has an interest in the proceeding? The purpose of a mediator is to have someone who is separate from the parties to the proceedings.
Mr Soden —I hesitate to say ‘no’, because I would not want to exclude the possibility. It would be a rare instance where a co-mediator would have any interest in the outcome. That, I agree, would be contravening the principles of a mediator. But if all of the parties agree that a particular Indigenous person would be an excellent person to have and would help in the facilitation of the mediation, it would be a factor that we would have to think about very carefully.
Senator TROOD —That is a profoundly different proposition to having someone who is related to the applicant.
Mr Soden —I did not want to suggest that we would have an Indigenous person related to the applicant involved in co-mediation.
Senator TROOD —I thought that you said that.
Mr Soden —No.
Senator SIEWERT —He said ‘acceptable’, which is different.
Senator TROOD —For a mediator to be properly exercising the role that I understand that mediator has they would have to be a person acceptable to the parties, not just the applicant.
Mr Soden —That is clear. I agree. I wish to make that clear, yes. They would have to be acceptable to all the parties.
CHAIR —Thank you very much for your attendance this afternoon. Your appearance is noted and very much appreciated. I thank all the witnesses who have given evidence before our committee hearing today.
Committee adjourned at 3.07 pm